Social Housing Speed Read – Poole Borough Council v GN and another
24th June, 2019
In this week's speed read we review the recent case of Poole Borough Council v GN and another, in which the Supreme Court revisited the issue of the duty of care owed by a local authority to social housing tenants.
The claimants in this case, GN and CN, were placed in local authority housing with their mother by Poole Borough Council (Poole) in May 2006. At the time GN was aged 7, and CN was aged 9 and both had severe physical and mental disabilities. Both claimants were identified by Poole as ‘children in need’ as defined by the Children Act 1989 and had social workers assigned to them. At the time the family was moved to the property, Poole were aware that the family living in the neighbouring property had a history of persistent anti-social behaviour.
Shortly after being moved to the property, the neighbouring family began subjecting the claimants and their mother to anti-social behaviour, which included vandalism, attacks on the family home, threats of violence and other verbal abuse, and physical assaults on one of the claimants and their mother.
Measures were taken to try and stop the behaviour, including threatened eviction, anti-social behaviour orders, sentences of imprisonment, etc, but they were ineffective. The behaviour carried on for several years. The severity of the abuse reached the point that GN attempted suicide. The claimants’ mother complained to the police, Poole, and the landlord (Poole Housing Partnership, an Arm’s Length Management Organisation which managed the claimants’ property on behalf of Poole), and in 2010 a review was commissioned by the Home Office which was critical of the conduct of all three authorities and their failure to adequately protect the claimants and their mother.
The claimants brought a civil claim against Poole, on the basis that:
- Poole had a common law duty to safeguard and promote the claimants’ welfare, which it had breached by failing to properly exercise its housing functions and its functions under the Children Act 1989 to investigate and monitor their situation; had it complied with its duty, it would have removed the claimants from their home.
- In the alternative, Poole was variously liable for the negligence of its social workers in failing to meet their duty of care by adequately carrying out their duties in relation to the claimants.
The claim was struck out before going to trial, as the judge was unsatisfied that a common law duty arose from Poole’s statutory powers and duties. The claimants appealed to the High Court, solely in relation to Poole’s functions under the Children Act 1989, and this appeal was allowed.
Poole appealed to the Court of Appeal, contending that there was no legal authority that imposed a duty of care on a local authority to protect the claimants from harm by a third party. The appeal was allowed, and the claimants appealed to the Supreme Court.
The Supreme Court’s decision
The decision of the Court of Appeal was upheld by the Supreme Court (SC), which decided that the claimants’ appeal should be struck out and not proceed to trial.
In relation to the first part of the claimants’ case, the SC held that public authorities and bodies exercising a public function do not owe a duty of care at common law simply by virtue of their exercising statutory powers or duties. However, in contrast to existing case law, the SC stated that public authorities may owe a common law duty of care in circumstances in which the principles applicable to private individuals or bodies would impose a duty, such as where the authority itself has created the source of danger or has assumed responsibility to protect the claimant from harm, except where this would be inconsistent with relevant legislation. The SC held that this was not the case in this instance.
Additionally, in relation to the claimants’ alternative claim that Poole was vicariously liable for the negligence of its social workers, the SC held that the social workers were under a contractual duty to Poole to carry out their responsibilities with proper professional skill and care, and that they would only owe a similar duty to the claimants if they had assumed responsibility to the claimants to do so. The SC stated that the claimants failed to establish this and so this was dismissed.
Furthermore, the claimants’ case was that Poole breached its duty of care by failing to remove the claimants from their home. In order to do this, it would have been necessary to establish that the claimants were suffering significant harm due to lack of parental care, which was not the cause of the harm in this case. As such there were no grounds to remove the claimants from their mother and Poole could not have breached the duty even if it had arisen.
While this decision appears to be a victory for local authorities, upholding the concept that no duty of care is owed merely due the exercise of statutory powers and duties, authorities should be wary as it means that they will no longer be able to rely on the defence of public policy to avoid a duty of care arising in certain circumstances.
This is on account of the SC’s determination that public bodies can owe a duty of care in similar circumstances to private parties. It should be remembered of course that each case will turn on its own facts so it cannot simply be assumed that a duty of care will not arise.
As a result it is likely that future cases will seek to focus on there being an assumption of responsibility by the public authority in question and frame this as creating a common law duty of care.
If you have any questions on the above and how it will affect social housing providers, or any other questions as a social housing provider, please do not hesitate to contact John Murray or a member of our expert Social Housing Team.
Please note that this briefing is designed to be informative, not advisory and represents our understanding of English law and practice as at the date indicated. We would always recommend that you should seek specific guidance on any particular legal issue.
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